Com. v. Young, M.

J-S26022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MONROE YOUNG, :
:
Appellant : No. 1663 EDA 2013
Appeal from the Judgment of Sentence Entered January 3, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0009297-2010.
BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 29, 2014
Appellant, Monroe Young, appeals from the judgment of sentence
entered following his convictions of one count each of possession with intent
possession of a controlled substance, possessing an instrument of crime
We affirm.
The trial court summarized the facts of this case as follows:
On June 2, 2010, Police Officer Cruz, Police Officer Turner,
and Police Officer Kelly received information from another
investigation which led them to the area of 3300 North 22 nd
Street, in the city and county of Philadelphia. N.T., 9/11/12
p.
who had been used in over 50 investigations involving narcotics,
____________________
*Former Justice specially assigned to the Superior Court.
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which had produced over 50 arrests. N.T., 9/11/12 pp. 8-10.
The CI was searched for contraband and currency. N.T.,
9/11/12 p. 11. Once cleared, the CI was supplied $40.00 in pre-
recorded buy money and the CI placed a call to 267-595-XXXX,
which the CI knew
9/11/12 p. 11. [Appellant] answered the call and instructed the
CI to proceed to a property located on [the] 3300 block of North
22nd Street. N.T., 9/11/12 p. 12.
The police and the CI arrived at the location sometime
between 3:15 p.m. and 6:15 p.m. N.T., 9/11/12 p. 13. The CI
was released in the area and met up with [Appellant], engaging
in a brief conversation lasting approximately one minute, and
then handing [Appellant] the prerecorded buy money. N.T.,
9/11/12 pp. 13-14. Officer Cruz observed the entire transaction
from approximately 35-40 feet away in his vehicle. N.T.,
9/11/12 pp. 13, 27 and N.T, 9/12/12 p. 22. As Officer Cruz
continued to watch, the CI followed [Appellant] to 3325 North
22nd Street where they both entered the property. N.T., 9/11/12
pp. 13-14. They remained inside the property for approximately
two minutes and then exited the property together. N.T.,
9/11/12 pp. 14-15. [Appellant] was wearing a white t-shirt, blue
jean shorts that came to the knee, and orange and white shell
top sneakers. N.T., 9/11/12 p. 40. The CI left the area and met
with police at a predetermined location. The CI gave police five
black packets containing crack cocaine that [Appellant] had sold
him in exchange for the pre-recorded buy money. N.T., 9/11/12
p. 13, 30.
On June 3, 2010, the police returned to 3325 North 22nd
Street with CI 01195 sometime between 2:15 p.m. and
5:45 p.m. N.T., p. 15, 27. [Appellant] was sitting on the porch.
N.T., 9/11/12 p. 16. [Appellant] was wearing a white t-shirt,
blue jean shorts that came to the knee, and orange and white
shell top sneakers. N.T., 9/11/12 p. 40. This was the identical
clothing and shoes [Appellant] wore the previous day. N.T.,
9/11/12 p. 40. The CI was searched for currency and
contraband and given $20.00 pre-recorded buy money. N.T.,
9/11/12 p. 15. The CI went to 3325 North 22nd Street, engaged
in a brief conversation with [Appellant] sitting on the porch, and
handed [Appellant] the pre-recorded buy money. N.T., 9/11/12
p. 16. [Appellant] entered the property and remained inside for
a few minutes. N.T., 9/11/12 p. 16. [Appellant] exited the
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property and handed the CI unidentified small objects. N.T.,
9/11/12 p. 16. The CI left the area and met with police. N.T.,
9/11/12 p. 16. The CI was searched and possessed four clear
plastic packets containing crack cocaine. N.T., 9/11/12 p. 17.
Officer Cruz observed this transaction. N.T., 9/11/12 pp. 34-36.
Based on these observations, the police applied and obtained a
search warrant for 3325 North 22nd Street. N.T., 9/11/12,
pp. 17, 18.
On June 4, 2010, the police set up surveillance at 3325
North 22nd Street. N.T., 9/11/12 p. 18. At approximately
3:55 p.m., [Appellant] arrived in a burgundy Mercury Sable with
a Pennsylvania license plate. N.T., 9/11/12 p. 18. Defendant
wore the same clothing from June 2nd and June 3rd. N.T.,
9/11/12 p. 43. [Appellant] and an unidentified black female
exited the vehicle. N.T., 9/11/12 p. 18 and N.T., 9/12/12 p. 65.
[Appellant] used a key to enter the property. N.T., 9/11/12
p. 18. The police arrived soon after to execute the search
warrant and knocked on the door. N.T., 9/11/12 p. 19. An
window of the property. N.T., 9/11/12 p. 19 and N.T., 9/12/12
pp. 24-25. The police entered the property and observed
[Appellant] exiting Apartment B located on the first floor towards
the rear of the row home. N.T., 9/11/12., pp. 19, 20, 38.
[Appellant] was stopped midexit. N.T., 9/11/12 pp. 20, 21, 38
and N.T., 9/12/12 p. 43. Recovered from his person were: two
keys, one that opened the front door of the house and the other
that opened [A]partment B, and a cell phone.1 N.T., 9/11/12
pp. 20, 21, 38 and N.T., 9/12/12 p. 43. The police called
the same telephone number used by the CI on June 2, 2010,
267-595-
1
ave him the
color-coded keys that unlocked the front door of
3325 North 22nd Street and Apartment B. N.T.,
9/12/12 pp. 101-103.
The police entered Apartment B and saw an open can on
the kitchen table. N.T., 9/11/12 p. 22. The can contained one
clear Ziploc packet with red markings on it that contained three
black packets and forty clear packets (identical to the packets
from the purchases of June 2nd and June 3rd 2010), all containing
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crack cocaine. N.T., 9/11/12 p. 22 and 9/12/12 pp. 28-29. The
can also contained one clear Ziploc packet with spades on it
containing bulk crack cocaine. N.T., 9/11/12 p. 22. [Appellant]
in the apartment. N.T., 9/12/12 pp. 104,106. On the bed was
one clear Ziploc packet with purple markings with the words
N.T., 9/12/12 p. 29. The police recovered various items in and
on the dresser in the apartment, including a letter with the name
of Country Black, a letter in the name of Monroe Young, a
Pennsylvania identification card with the name Monroe Young
Junior, a semi-automatic handgun with an obliterated serial
number, bullets, and $303.00 in United States currency. N.T.,
9/11/12 p. 22, 24 and N.T., 9/12/12 pp. 30-31, 41-42. The
correspondence was addressed to 3419 North 22nd Street. N.T.,
9/12/12 pp. 41-42.2 The handgun and the bullets were
recovered from the same drawer of the dresser. N.T., 9/12/12
p. 35. A deed with the address of 3325 North 22nd Street listing
the names of Anthony Floyd and Monroe Young was found on the
dresser.3 N.T., 9/12/12 pp. 37-41. There was male clothing
observed inside the drawers of the dresser. N.T., 9/11/12 p. 24.
No other person stayed with [Appellant] in the apartment. N.T.,
9/12/12 pp. 106-107.
2
at both 3419 North 22nd Street with his mother and
at 3325 North 22nd Street Apartment B. N.T.,
9/12/12 pp. 92-107.
3
The deed was identified as a lease during the
motions hearing on September 11, 2012. This
misidentification was clarified at trial. N.T., 9/12/12
pp. 36-41, 50.
Trial Court Opinion, 12/10/13, at 3-6 (footnotes in original).
On September 12, 2012, at the conclusion of a nonjury trial, Appellant
was convicted of the crimes stated above. On January 3, 2013, the trial
court sentenced Appellant to serve concurrent terms of incarceration of five
to ten years for the conviction of PWID, two to five years for the conviction
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of VUFA, and one and one-half to three years for the conviction of criminal
use of a communication facility. No further penalty was imposed on the
convictions of possession of controlled substance, PIC, and possession of a
-sentence
motion, which included a challenge to the weight of the evidence, was
denied by operation of law. This appeal followed.
Appellant presents the following issues for our review:
1) Whether the evidence presented at trial was sufficient to
support
Mother appeared in court and testified that she found the gun,
placed it in a hidden area of the house, and failed to inform
Appellant that the gun was inside the house?
2) Whether the verdict was against the weight of the
evidence shocks a sense of justice where the Appellant was
convicted of possessory weapons and drug offenses where the
evidence showed that he was not in control of the weapon and
that he knew nothing of its existence or placement inside the
house?
3) Whether the sentence imposed constituted an abuse of
discretion where it was harsh, excessive and illegal?
Appellant first argues that there was insufficient evidence to support
his convictions relating to the firearm. He contends that his convictions of
firearms violations and PIC require that he be in possession of a weapon.
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Appellant asserts that the evidence did not establish that he was in either
actual or constructive possession of the weapon.1
When reviewing challenges to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the Commonwealth as
verdict winner, giving the prosecution the benefit of all reasonable inferences
to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d
sufficient to support the verdict when it establishes each material element of
the crime charged and the commission thereof by the accused, beyond a
Id. (quoting Commonwealth v. Brewer, 876 A.2d
1We note that there is some error in the argument portion of Appellan
16. We will consider this to be a clerical error and address the arguments as
a single issue. However, to the extent that Appellant includes a discussion
challenging the sufficiency of the evidence concerning his conviction of
-16, we observe that such claim is waived for
purposes of appeal because Appellant did not include that specific issue in
his Pa.R.A.P. 1925(b) statement. See Commonwealth v. Lord, 719 A.2d
306, 308 (Pa. 1998) (holding that where a trial court directs a defendant to
file a concise statement pursuant to Pa.R.A.P. 1925, any issues not raised in
that statement shall be waived). See also Commonwealth v. Mattison,
82 A.3d 386, 393 (Pa. 2013) (waiving sufficiency of the evidence challenges
to particular convictions where the appellant did not raise those convictions
in his Pa.R.A.P. 1925(b) statement). Moreover, Appellant did not include in
evidence with regard to his conviction of PWID and, thus, waived the issue
See Commonwealth v. Bryant,
57 A.3d 191, 196 n.7 (Pa. Super. 2012) (citing Pa.R.A.P. 2116(a) and
concluding that challenges to the weight and sufficiency of the evidence of
particular convictions were waived for failure to include them in Statement of
the Questions in appellate brief).
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1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not
establish guilt to a mathematical certainty, and it may sustain its burden by
means of wholly circumstantial evidence. Id. In addition, this Court may
not substitute its judgment for that of the factfinder, and where the record
contains support for the convictions, they may not be disturbed. Id. Lastly,
we note that the finder of fact is free to believe some, all, or none of the
evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.
Super. 2006).
Because Appellant was not in physical possession of the firearm in
question, the Commonwealth was required to establish that he had
constructive possession of the seized item to support his convictions. We
are mindful that where the contraband a person is charged with possessing
is not found on the person of the defendant, the Commonwealth is required
to prove constructive possession. Commonwealth v. Kirkland, 831 A.2d
607, 611 (Pa. Super. 2003). Constructive possession is an inference arising
from a set of facts that possession of the contraband was more likely than
not. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004).
In addition, constructive possession can be proven by circumstantial
Commonwealth v.
Clark, 746 A.2d 1128, 1136 (Pa. Super. 2000) (quoting Commonwealth v.
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Haskins, 677 A.2d 328, 330 (Pa. Super. 1996)). Moreover, we have held
that circumstantial evidence is reviewed by the same standard as direct
evidence
as the combination of the evidence links the accused to the crime beyond a
Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa.
Super. 2003) (citations omitted).
establish his possession of the firearm beyond a reasonable doubt. Our
review of the record, in the light most favorable to the Commonwealth,
reflects that Appellant had the intent and ability to control the firearm.
Officer Mario Cruz, a twenty-two-year veteran of the Philadelphia Police
Department, testified that on June 4, 2010, he executed a search warrant at
3325 North 22nd Street. N.T., 9/12/12, at 19-23. As the officers arrived at
Apartment B, within the building, Appellant opened the door and was exiting
the apartment. Id. at 25. Officer Cruz explained that, while searching the
apartment, the officers recovered a semiautomatic handgun with an
obliterated serial number from a dresser drawer in the bedroom. Id. at 31-
35, 48. Officer Cruz further testified that other items were found in the
bedroom dresser, including a deed to the residence at 3325 North 22nd
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Id. at 35-43. Officer Cruz also stated that the police
recovere
door of the building and the door to Apartment B. Id. at 43. This evidence,
viewed in the light most favorable to the Commonwealth, although
circumstantial, established that Appellant was in constructive possession of
present sufficient evidence to prove constructive possession of the firearm
for the crimes of VUFA, PIC, and possession of a firearm with altered
manufac
Appellant next raises a claim challenging the weight of the evidence.
In the argument portion of his appellate brief, Appellant solely challenges
whether the weight of the evidence supported his firearms convictions.
Appellant fails to make any argument pertaining to the narcotics offenses.
The determination of whether the verdict was against the
weight of the evidence rests with the trial court. Where the
justice then an award of a new trial is imperative so that right
Commonwealth
v. Ragan, 439 Pa. Super. 337, 653 A.2d 1286 (1995); citing
Thompson vs. City of Philadelphia, 507 Pa. 592, 493 A.2d
669 (1985).
The evidence failed to even circumstantially establish
beyond a reasonable doubt that Appellant had knowledge of the
gun or that he intended to use the gun for criminal purposes.
The evidence viewed in a light favorable to the Commonwealth
at most suggested that Appellant may have known of the gun.
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house years earlier, that the gun was old and dusty, and that
she placed [it] in a dresser drawer. N.T., 09/12/2012, 83-85.
The totality of the circumstances demand that Appellant be
granted a new trial. The Commonwealth was required to prove
every element, i.e., specifically possession, beyond a reasonable
doubt. To permit the verdicts to stand for the PIC and VUFA
charges would result in a miscarriage of justice. Appellant seeks
and VUFA charges to be set aside and be resentenced.
-20. Thus, we must conclude that Appellant has
abandoned any weight of the evidence argument with regard to the narcotics
convictions. Accordingly, we address only the weight of the evidence
pertaining to the firearms convictions.
We use the following standard of review in addressing a weight of the
evidence claim:
Our scope of review for such a claim is very narrow. The
determination of whether to grant a new trial because the
verdict is against the weight of the evidence rests within the
discretion of the trial court, and we will not disturb that decision
absent an abuse of discretion. Where issues of credibility and
weight of the evidence are concerned, it is not the function of
the appellate court to substitute its judgment based on a cold
record for that of the trial court. The weight to be accorded
conflicting evidence is exclusively for the fact finder, whose
findings will not be disturbed on appeal if they are supported by
the record. A claim that the evidence presented at trial was
contradictory and unable to support the verdict requires the
grant of a new trial only when the verdict is so contrary to the
Commonwealth v. Young, 692 A.2d 1112, 1114 (Pa. Super. 1997)
(citations omitted).
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It must be emphasized that it is not for this Court or any
appellate court to view the evidence as if it was the jury. Our
purview is extremely limited and is confined to whether the trial
court abused its discretion in finding that the jury verdict did not
shock its conscience.
Commonwealth v. Griffin, 684 A.2d 589, 597 (Pa. Super. 1996). Thus,
exercise of discretion, not a review of the underlying question of whether the
verdict is against the weight of the evidence. Commonwealth v. Widmer,
744 A.2d 745, 753 (Pa. 2000).
Our review of the record reflects that the trial court addressed
challenge to the sufficiency of the evidence claim raised in the preceding
issue, and determined that it lacked merit. See Trial Court Opinion,
12/10/13, at 9-
the evidence presented at trial plainly established that [Appellant]
Id. at 9. The trial court ultimately
concluded the following:
The Court, as factfinder, credited the testimony of the
police officers, along with the evidence presented at trial, over
the testimony presented by [Appellant]. Because the evidence
fully supported the verdict, the Court did not abuse its discretion
Id. at 10.
Similarly, our review of the record reflects that the Commonwealth
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the firearm in question. N.T., 9/12/12, at 19-23. Here, the trial court,
sitting as the finder of fact, was free to believe all, part, or none of the
evidence against Appellant. The trial judge weighed the evidence and
concluded Appellant committed the crimes in question. We decline
evidence. Accordingly, we conclude that the trial court did not abuse its
merit.
In his final issue, Appellant argues that the trial court erred when it
imposed a mandatory minimum sentence of five years of incarceration,
pursuant to 42 Pa.C.S.A. § 9712.1, for his conviction of PWID. Appellant
again asserts that he was not in constructive possession of the firearm, and
therefore a sentence pursuant to section 9712.1 is illegal.
Application of a mandatory minimum sentence gives rise to illegal
sentence concerns, even where the sentence is within the statutory limits.
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013).2
relating to the legality of a sentence are questions of law[; as a result, o]ur
standard of review over such questions is de novo, and our scope of review
2
We note that in Commonwealth v. Watley, 81 A.3d 108 (Pa. Super.
2013) (en banc), this Court recognized that many mandatory minimum
statutes in Pennsylvania are no longer constitutional based on Alleyne v.
United States, ___ U.S. ___, 133 S. Ct. 2151 (2013). Alleyne requires
facts increasing a sentencing floor, unrelated to prior convictions, to be
established beyond a reasonable doubt.
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Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super.
2013) (citations omitted).
The relevant portion of the statute, requiring the imposition of a
mandatory minimum sentence, provides as follows:
§ 9712.1. Sentences for certain drug offenses committed
with firearms.
(a) Mandatory sentence.--Any person who is convicted of a
violation of section 13(a)(30) of the . . . Controlled Substance,
Drug, Device and Cosmetic Act, when at the time of the offense
in physical
possession or control of a firearm, whether visible, concealed
in close proximity to the controlled
substance, shall likewise be sentenced to a minimum sentence
of at least five years of total confinement.
42 Pa.C.S.A. § 9712.1(a) (footnote omitted; emphasis added).
In Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013), our
Supreme Court interpreted the meaning behind physical possession and
control in Section 9712.1(a), and stated the following:
[I]t is clear enough that, in prescribing a mandatory minimum
connection with PWID, the Legislature intended to address the
actual or constructive exercise of power over a weapon, as the
Commonwealth contends. The requirement favored by
Appellant immediate and direct physical accessibility to the
firearm is in tension with the guidance
face.
We do agree with Appellant, however, that an overt
without knowledge (as, for example, a weapon might
surreptitiously be slipped into a bag carried by the defendant),
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the longstanding understanding of constructive possession
and/or constructive control incorporates a scienter requirement.
Consistent with the rule of lenity, we find that such requisite
should pertain in the context of mandatory sentencing as well.
control is appropriate; our main difference with the
there is no need to make the scienter requirement overt.
Accordingly, we hold that, for purposes of
Section
knowing exercise of power over a weapon, which may be proven
through evidence of a direct, physical association between the
defendant and the weapon or evidence of constructive control.
Constructive control, in this setting, an analogue to constructive
possession, entails the ability to exercise a conscious dominion
and the intent to do so.
Hanson, 83 A.3d at 1036-1037.
As discussed previously in this Memorandum, Appellant proceeded in a
nonjury trial and evidence of the constructive possession of the firearm was
introduced at trial. In this respect, the trial court, sitting as the finder of
fact, found that Appellant constructively possessed the gun in the dresser.
Trial Court Opinion, 12/10/13, at 7-9. Thus, the trial court, in finding
Appellant guilty of the firearm charges, found beyond a reasonable doubt
that Appellant constructively possessed the firearm, which is an analogue to
constructive control, thereby triggering the mandatory minimum.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2014
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